EFA welcomes the report of the Parliamentary Joint Committee on Human Rights [PDF] which confirms that the protections for journalists included in this year’s mandatory data retention legislation are inadequate and may ‘limit the right to an effective remedy, fair hearing, privacy and freedom of expression.’

While the Committee’s report primarily addresses the procedural shortcomings in this context, it is clear that the entire concept of creating a special case for one section of the community is fundamentally flawed.

EFA Chair David Cake said, “It’s simply not possible to carve one section of the community out of a mandatory, society-wide data retention scheme. While protecting journalist’s sources in order to facilitate effective whistle-blowing is critical to ensuring accountability in the public sector, there are many other privileged communications that also deserve protection, including lawyer-clients, doctor-patients and many others. The only way to achieve effective protection is for a warrant requirement to be implemented for all access to retained telecommunications data.”

Contrary to previous assertions by the Attorney-General and other advocates for warrantless access to this information that a universal warrant requirement would be unworkable, there are many countries that have had such a requirement for some years. Within the European Union, 11 Member States require judicial authorisation for all requests for access to retained data and another three Member States require judicial authorisation in most cases.

EFA calls on the federal parliament to urgently review this legislation, and to implement a universal warrant requirement for access to retained telecommunications data. Without this requirement, the mandatory data retention scheme represents a clear and serious threat not only to the privacy of all Australians but to the ability of the media to hold governments to account. As such, it undermines the effective functioning of Australia’s democracy.

Mandatory Data Breach Notification Legislation

EFA also notes last week’s announcement by the Attorney-General of an exposure draft of mandatory data breach notification legislation. While the release of this exposure draft is welcome, it does not fulfil the Attorney’s previous commitments to have such legislation introduced to the parliament before the end of this year.

Given that similar legislation was passed by the House of Representatives in 2013 and only failed to pass the Senate when parliament was prorogued for the 2013 election, and that the bill was re-introduced in 2014 as a private member’s bill, it is disappointing that the Attorney has been so slow to act on this important issue.

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